Summit seeks 'political solution' to Passaic River pollution lawsuit

SUMMIT — The city is one of more than 300 towns and governmental entities named as defendants in a complex lawsuit originally filed by the New Jersey Department of Environmental Protection against chemical companies over pollution in the Passaic River.

Summit Councilman Dave Bomgarrs said the lawsuit, NJDEP vs. Occidental Chemical Corporation et al., “is speculated to be one of the five biggest lawsuits in U.S. history.”

The potential costs of the litigation involved are so huge as to have the potential of bankrupting the towns, according to Council President Richard Madden. As a consequence, the council and mayor are pursing what Madden called a “political solution” to the lawsuit.

The Common Council approved, by a vote of 7-0 on June 6, a resolution authorizing the mayor to write to the governor, county freeholders, state senators and assembly members about NJDEP vs. Occidental Chemical Corporation et al. The goal is to explain the city’s concern about the lawsuit and ask their help in either removing Summit and about 350 other towns and governmental entities from the lawsuit or indemnifying them from any costs associated with it.

“We have to get to the DEP and find a way to get us indemnified from this lawsuit,” Mayor Ellen Dickson said.

The council agreed and adopted the resolution to send a letter out as a first step to finding a political solution.

Eleven of the municipalities are members of the Joint Meeting of Essex and Union Counties, the sewer utility in Elizabeth that handles waste water for 11 towns in the two counties. Those communities include all or some parts of Millburn and Summit in the Independent Press circulation area and all or part of East Orange, Hillside, Irvington, Maplewood, Newark, Roselle Park, South Orange, Union and West Orange. In addition, the Joint Meeting has customers in Orange, Berkeley Heights, Linden and New Providence, as well as the City of Elizabeth and parts of Livingston.

The other 340-plus defendants are towns that line the banks of the Passaic River and governmental entities, such as sewage treatment plants, that legally send treated water into the river from state licensed sewage treatment plants.

Bomgaars said that the initial lawsuit was filed in 2005. At that time the New Jersey Department of Environmental Protection sued Occidental Chemical and six other companies at 80 Lister Street in Newark for polluting the Newark Bay Complex and 17 miles of the lower Passaic River.

In 2009, those second-party defendants sued third-party defendants, including the Joint Meeting. Later, the original defendants sued the City of Summit and possibly 300 other municipalities as well as governmental entities, said Bomgaars.

A special court master has been assigned to manage the case and another one to manage electronic discovery, he said.

“Discovery in this suit goes back 80 years," Madden said. "There could be up to 100 billion documents involved.” He called it “absolutely ridiculous” that the state is seeking “to find out if someone from Summit put chemicals in the Passaic River or flushed something wrong from zero to 80 years ago.”

The extreme pollution of the Passaic River dates back to the period of 1951 to 1969, when there were no pollution laws in place, Madden said. At that time, toxic pollutants that came from production of Agent Orange and DDT were “intentionally spilled into Passaic River, which polluted the river totally.”

During the 1980s agreements were made to clean up the river and Newark Bay, but that never happened. Then the Lister Street property changed hands and Occidental Petroleum, Tierra Solutions and Maxus Energy Corp. were added to the lawsuit. In 2009 they in turn sued the Joint Meeting and the 11 members of the Joint Meeting individually. Finally, all the towns and governmental entities were added, Madden explained.

Summit is being defended as a city and as part of the Joint Meeting. Figures as high as $4 billion, before legal fees, have been bandied about, Madden said, but “realistically” that could become as high as $10 billion in damages and $5 billion in legal fees, which, if split up among all parties, could be “$100 million for each city involved. That’s absurd for an obvious boondoogle,” Madden said.

Boomgaars explained that the State Department of Environmental Protection is “working with the federal government and the (Army) Corps of Engineers, who will actually do the cleanup.” The federal government will want some part of the cost of the cleanup to come from the state, which is why the NJDEP filed suit initially in 2005 and why the number of defendants has expanded to third- and possibly fourth-party defendants. It will spread the liability out, leaving the original defendants with less of a financial burden if the NJDEP wins its suit.

Council member Nuris Portuondo said she wanted to make sure the public understands that the council is “not taking a position on whether the river needs to be cleaned or not; it’s not about the environmental problem.” She said just taking part in the lawsuit is prohibitive.

“The costs of cleaning up dioxin in the Hudson River pale in comparison to what we are talking about now,” she said.

Those fourth-party defendants that could yet be named are private businesses that may have polluted the river. Councilman Tom Getzendanner said, “We’re being asked to squeal on some local businesses as if they were polluters,” something which he said he won’t do.

Madden stated flatly that Summit won't name private businesses “as defendants to reduce our liability. To do so would be irreparable harm to our city … It’s in our best interests to keep them in the fold with us.”